People ex rel. Bowman v. Hovious

17 Cal. 471 | Cal. | 1861

Cope, J. delivered the opinion of the Court

Baldwin, J. concurring.

This is an application for a mandamus. The following are the facts: On the sixth of July, 1855, Thomas A. Lynch recovered a judgment in the late Superior Court of the city of San Francisco, against Alvin Adams, Daniel H. Haskell, and Isaac C. Woods, for the sum of $10,143.06, which judgment was duly docketed in the office of the Clerk of that Court, as required by the statute. On the eighteenth of August, 1859, the relator recovered a judgment in the District Court for San Mateo county, against the same defendants, for the sum of $5,000, and certain lands situated in that county were levied upon and sold under an execution issued upon this judgment. The relator became the purchaser, and received a certificate of sale in the usual form. On the twenty-first of February, 1860, a copy of the first mentioned judgment, together with a transcript of the docket, was filed in the office of the Recorder of San Mateo county, and afterwards, and within the time limited for the redemption of the lands from the sale to the relator, the holder of that judgment paid to the defendant the amount necessary for that purpose. The question is as to the validity of this redemption, and the only point to be determined is, whether a lien was acquired upon the lands in question by the filing of the transcript in the county of San Mateo.

The act creating San Mateo county was passed in April, 1856, and prior to that time the territory embraced within the limits of that county constituted a part of the county of San Francisco. The judgment under which a redemption is claimed to have been made was docketed in July, 1855, and from that time became a lien upon all the real estate of the judgment debtors, not exempt from execution, situated in San Francisco county. We cannot assent to the view that the provisions of section two hundred and four of the Practice Act were not applicable in their full extent to judgments obtained in the Superior Court of the city of San Francisco. The proposition is, that under the provisions of that section the lien of such judgments did not extend beyond the corporate limits of the city, but we cannot adopt a construction which is not justified by the letter or spirit of these provisions. The power of the Legislature over the subject cannot, of course, be questioned. It is clear, therefore, that a lien, such as we have stated, attached upon the docketing of the judgment in 1855, and our opinion is, that this lien was not destroyed by the subsequent organization of the county of San Mateo, but continued until cut off by the limitation affixed by the statute. No provision was made in the act creating San Mateo county affecting its existence or continuance, and we do not think that the mere fact of the organization of that county was sufficient to destroy it. It existed by positive provision of law, and could not be taken away by implication and inference. We think, however, that there was no intention to interfere with the operation of any lien which had previously attached. The effect of such interference would have been to change entirely the situation and condition of creditors in that respect, and we cannot suppose that any such change was contemplated in the passage of the act. The case of Davidson v. Root (11 Ohio, 98) is directly in point: “Judgment liens,” say the Court, “ are of a purely legal character. They do not exist at common law. Their creation, extension, and continuance depend entirely upon statutory provision. Their operation, as a part of the remedy to enforce the collection of a debt, is governed by the terms of the statute. That the lien may attach it is certain that, by the statute, the land must be in the county where the judgment is rendered, at the time of its rendition; or if in another county, there must be an actual levy. And it is, therefore, supposed that where a new county is organized, with no saving clause in the act, and lands subject to a judgment lien in the old county fall within the new organization, the lien ceases to exist. We do not think so. The lien being given by express provision, although it is admitted, as a part of the remedy, to be within the control of the Legislature, must, nevertheless, remain until lost by act of the judgment creditor, or taken away by subsequent legislation. There is nothing, express or implied, in the Act,of 1838 organizing Erie county, inconsistent with the enforcement of this lien. It may be said that after the division of the counties the records of Erie furnish no notice of this incumbrance to the purchaser. This is true; nor would they furnish such notice had there been ever so extensive a saving clause in the act. There is no difference, in our opinion, in principle between this judgment lien and a lien created by mortgage, recorded in Huron county before the division. The records of Erie would have given no notice of the fact at the date of this purchase by the respondents. The law requires all instruments by which lands are incumbered to be recorded in the county where the land lies; but it has never been supposed that liens created by such instruments became inoperative because the land incumbered, by a subsequent division, fell into a different county than that in which such instrument was recorded. Nor has a new record in such cases been considered necessary to protect the grantee against subsequent purchasers without notice. The analogy between the two cases is complete.” We have quoted at length from the opinion in this case, because it is the only case in point to which we have been referred, and because the reasons presented are well stated and entirely conclusive.

If we are correct in our views thus far, there is little more to be said. The property could not be subjected a second time to a lien under the same judgment. This is the only conclusion at which we can reasonably arrive. If such a lien, once exhausted, can after-wards be revived, there is no limit to the number of times that this may be done. It may be done over and over again, as often as the formation of a new county furnishes an opportunity for that purpose. No special consideration is due to a proposition involving results so palpably absurd.

We think the decision of the Court below was correct, and the order directing the issuance of a mandamus is affirmed.